out indulging in
a declamation unsuited to the place, he had to step outside of legal points
and in a freer air, where he could use his keenest and strongest weapons,
appeal to the court not as lawyers but as men subject to passion, emotion,
and prejudice. This he did boldly, delicately, successfully, and thus he
won his case.

The replies of the opposing counsel were poor enough after such a speech.
Holmes's declamation sounded rather cheap, and Mr. Wirt, thrown off his
balance by Mr. Webster's exposure of his ignorance, did but slight justice
to himself or his cause. March 12th the arguments were closed, and the next
day, after a conference, the Chief Justice announced that the court could
agree on nothing and that the cause must be continued for a year, until the
next term. The fact probably was that Marshall found the judges five to two
against the college, and that the task of bringing them into line was not a
light one.

In this undertaking, however, he was powerfully aided by the counsel and
all the friends of the college. The old board of trustees had already paid
much attention to public opinion. The press was largely Federalist, and,
under the pressure of what was made a party question, they had espoused
warmly the cause of the college. Letters and essays had appeared, and
pamphlets had been circulated, together with the arguments of the counsel
at Exeter. This work was pushed with increased eagerness after the argument
at Washington, and the object now was to create about the three doubtful
judges an atmosphere of public opinion which should imperceptibly bring
them over to the college. Johnson, Livingston, and Story were all men who
would have started at the barest suspicion of outside influence even in the
most legitimate form of argument, which was all that was ever thought of or
attempted. This made the task of the trustees very delicate and difficult
in developing a public sentiment which should sway the judges without their
being aware of it. The printed arguments of Mason, Smith, and Webster were
carefully sent to certain of the judges, but not to all. All documents of a
similar character found their way to the same quarters. The leading
Federalists were aroused everywhere, so that the judges might be made to
feel their opinion. With Story, as a New England man, a Democrat by
circumstances, a Federalist by nature, there was but little difficulty. A
thorough review of the case, joined with Mr. Webster's